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Frequently Asked Questions (FAQs)

Questions About Justice Participation, General Protocols

​If a justice has a conflict, then a senior judge who previously served on the Supreme Court participates on the case, and if two justices have conflicts, then two such senior judges participate.  In those situations, the case is decided by a seven-member court.  An exception is when more than two sitting justices have conflicts; in that instance, only two senior judges may participate, and so the case is decided by a six-member court.  See ORS 2.111(5) (no more than two senior judges may sit on a Supreme Court case considered en banc).  ​(Last updated 2/24/23)

​The court's process is designed to utilize the service of retired justices (now senior judges) on a rotation basis, prioritizing those who have post-retirement service time remaining as part of their state judge retirement plan, and to assign cases based on availability, with the particular case(s) identified to the senior justice only after the assignment is made.  Court staff rotates through a list of those senior judges with service time remaining, confirming assignments based on availability on scheduled argument dates.  If no senior judge with remaining service time is available to sit on a particular date, court staff uses a similar process to determine whether a retired member is available to sit on a volunteer basis.​  (Last updated 2/24/23)

The court's current practice is that a new justice participates on decisions already under advisement in two scenarios, assuming that the justice has no conflict:  (1) when a draft of the opinion had not yet been considered at a court conference at the time when the new justice joined the court; or (2) even if a draft of the opinion already had been submitted before the new justice joined the court, when fewer than seven total justices otherwise are participating on the case (typically due to a combination of conflicts and a limitation on the number of senior judges who may participate).  See ORS 2.111(8)(a) (Supreme Court justice may participate, without resubmission of the case, when the justice was appointed or elected to the court after submission of the case); ORS 2.111(5) (no more than two senior judges may sit on a Supreme Court case considered en banc). ​  (Last updated 10/24/23)​